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and Return to:
Raul J. Aguila, Esq.
Office -of the. City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECU AGREEMENT (the "Mortgage" or the "Senior
Mortgage ") executed this day of Ali 2010, by MIAMI BEACH. COMMUNITY
DEVELOPMENT CORPORATION,, a Florida not- for - profit corporation (the "Mortgagor")-, whose
address is 945 Pennsylvania. Avenue,,, Miami Beach, FL 33139, and the CITY OF MIAMI
BEACH, a Florida municipal corporation (the ''Mortgagee ") (which term as', used in every
instance. shall include the Mortgagee's successors and assigns), whose address is 1700
Convention Center Drive, Miami Beach, Florida 33139.
s
WITNESSETH:
That for valuable consideration and also in consideration of the aggregate sum of
money described in that certain Promissory Note (the "Note ") of even date herewith, executed
by Mortgagor in favor of Mortgagee, in the original Principal Amount of $2,376,181.53. (the
"Principal Amount "), the Mortgagor does grant,, bargain, .,sell,, alien, remise, release, convey and
confirm unto the Mortgagee, in fee simple a lien upon and security interest in that certain parcel
of real property located in Miami -Dade County, Florida, which is described in Exhibit "A"
attached hereto and made a part hereof. Hereinafter said real estate, buildings, improvements
(including - improvements to be made hereafter),, fixtures herein below, described and located on
said real estate are sometimes collectively referred to as the "Premises ".
TO HAVE ' AND TO HOLD the Premises and all ., parts, rights, members and
appurtenances thereof, to the use, benefit and behalf .of the Mortgagee, its-successors and
assigns in fee simple forever, and the Mortgagor covenants that the Mortgagor is lawfully seized
and possessed of the Premises in fee simple and has good right to convey the same, and that
the Mortgagor will warrant and defend the title thereto against the claims of all persons
whomsoever, except as hereinafter expressly provided.
PROVIDED ALWAYS that if the Mortgagor shall pay unto the Mortgagee all sums
required under the terms of the Note, and shall comply with and abide by each and every one of
the stipulations, agreements, conditions and covenants contained herein (as such term is
defined below), then in such event this Mortgage and the estate hereby created shall cease and
be null and void.
NOTE TO RECORDER: Intangible tax is not required in connection with this Mortgage pursuant to Florida Statue
.Section 199.183(1).
1
f
The Mortgagor covenants with the Mortgagee as follows:
A. Payment of Indebtedness The Mortgagor will pay the Note 'according to the terms
thereof and. all other sums secured hereby promptly as the same shall become due.
B. Taxes, Liens and Other Charges
(a) In the event of the passage of any state, federal, municipal or other
governmental law,. order, rule or regulation, subsequent to the date hereof, in any
manner changing or modifying the laws. now in force governing the taxation of
debts secured by mortgages or the manner of collecting taxes so as to affect
adversely the Mortgagee, the Mortgagor will promptly pay any such tax; if the
Mortgagor fails to make such prompt payment or if any such. state, federal,
municipal or other governmental law, order, rule ' or regulation - prohibits the
Mortgagor from making. such payment or would penalize the Mortgagee from
making such payment or would penalize the Mortgagee if the Mortgagor makes
such payment, then the entire balance of the principal sum secured by this .
Mortgage and all interest accrued thereon shall, without notice, immediately
become due and payable at the option of the Mortgagee.
(b) The Mortgagor will pay, before the same become delinquent, all taxes,
Liens, assessments . and charges 'of every character already levied or assessed or
that may, hereafter be levied or. assessed upon or against the Premises and all
utility charges, whether public or private; and upon demand will furnish the
Mortgagee receipted bills evidencing such payment.
(c) The Mortgagor will. not suffer. any mechanic's, materialmen's, laborer's,
statutory or other lien which might or could be prior to or equal to the security
interest and mortgage liens of this Mortgage to be created or to remain
outstanding upon any part of the Premises.
C. Intentionally Deleted.
D. Insurance The Mortgagor will keep all buildings and improvements now or hereafter on
the, Premises insured against loss or damage by fire, extended coverage and other
perils, and agrees to deliver said policy or policies to the Mortgagee when issued with
the receipts for the payment of the premium therefore; and in the event any sum of
money becomes payable under such policy or policies, the Mortgagee shall permit the
Mortgagor to receive and use it, or any part thereof,' for repair or restoration of the
Premises, subject to terms reasonably acceptable to Mortgagee, without thereby waiving
or impairing any equity, lien or right under or by virtue of this Mortgage; and the
Mortgagee if it deems necessary may place and pay for such insurance, or any, part
thereof, without losing, waiving or affecting Mortgagee's option to foreclose for breach of
this covenant, or any part thereof, or any right or option under this Mortgage, and every
such payment shall -bear interest from date thereof until paid at the default interest rate,
and all such payments with interest as aforesaid shall be secured by the Lien hereof. In
the event any loss or damage is suffered Mortgagor shall notify Mortgagee of such loss
or damage within seven (7) days after the happening thereof; the failure to give such
notice shall constitute a default and the Mortgagee shall have ,the rights herein given for
all defaults.
E. Care of Premises
(a) The Mortgagor will keep the improvements now or hereafter erected on
the Premises in good condition and repair, will not commit or suffer any waste
and -will not do or suffer to be done anything which will increase the risk .of fire or
other hazard to the Premises or any part thereof.
(b) The Mortgagor will not remove or demolish nor alter the design or
structural 'character of any building (now or hereafter erected), fixture or chattel
which are part of the security or other part of the Premises without the prior
written consent of the Mortgagee.
(c) If the Premises or any part thereof is damaged by fire or any other cause,
the Mortgagor will give written notice of the same to the Mortgagee.
(d) The Mortgagee or its representative is hereby authorized to enter upon
and inspect the Premises at any time during normal business hours..
(e) The Mortgagor will promptly comply with all present and future laws,
ordinances, rules and regulations of any governmental authority affecting the
Premises or any part thereof.
(f) If all or any part of the Premises shall be damaged by fire or other
casualty, the Mortgagor will, upon request of the Mortgagee, promptly restore the
Premises to the equivalent of, its condition immediately prior to such damage, and
if a part of the Premises shall be damaged through condemnation, the Mortgagor
will, upon request of Mortgagee, promptly restore, repair or alter the remaining
part of the Premises in a manner reasonably satisfactory to the Mortgagee.
F. Further Assurances: Modifications At any time, and from time . to time, upon the
reasonable request by the Mortgagee, the. Mortgagor will make, execute and .deliver or
cause to be made, executed and delivered, to the Mortgagee, any and all other.further
instruments, .certificates and other documents as may, in the opinion of the Mortgagee,
be. necessary or desirable in order to effectuate, complete, or perfect or to continue and
preserve (i) the obligations of the Mortgagor under the Note, (ii) the security interest of
this Mortgage, and (iii) the mortgage lien hereunder.
G. Expenses The Mortgagor will pay or reimburse the Mortgagee for all reasonable
attorney's fees, costs and expenses, of any action, legal proceeding or, dispute of any
kind :in which the Mortgagee is victorious, affecting the indebtedness secured hereby,
this Mortgage or the interest created herein, or the Premises, including. but not limited to.
the foreclosure of this Mortgage, any condemnation action involving the Premises or any
action to protect the security hereof; and any such amounts paid by the Mortgagee shall
be secured by this Mortgage.
(a) Estoppel Affidavits The Mortgagor, upon ten (10) ' days prior written
notice, shall furnish the Mortgagee with a written statement, duly acknowledged,
setting forth the unpaid principal of, and interest on, the indebtedness secured
hereby and whether or not any off -sets or defenses exist against such principal
and interest._ The Mortgagee shall provide a similar estoppel affidavit to
Mortgagor, upon ten (10) days prior written notice to Mortgagee.
H. Performance by Mortgagee of Defaults by Mortgagor If the Mortgagor shall default in
the payment of any tax, lien, assessment or charge levied or assessed against, the
Premises; in the payment of any utility charge, whether public or private; in the payment
of any insurance premium, in the procurement of insurance coverage and the delivery of
the insurance policies required hereunder; in the performance of any covenant, term or
condition of any leases affecting all or any part of the Premises; or in the performance or
observance of any covenant, condition or term of - this Mortgage; then the Mortgagee, at
its option, may perform or observe the same, and all payments made or costs incurred
by the Mortgagee in. connection therewith, shall be secured hereby and shall be, without
demand, immediately repaid by the Mortgagor to the Mortgagee. The Mortgagee is
hereby empowered to enter and to. authorize others to enter upon the Premises or any
part thereof for the purpose of performing or observing any such defaulted covenant,
condition or term, without thereby becoming Liable to the Mortgagor or any other person
in possession. holding . under the Mortgagor.
1. Restrictive Covenants. Mortgagor shall be subject to the following recapture provisions,
covenants and restrictions; all of which shall also be deemed covenants-'running with,
and binding upon, the Premises:
a) Notwithstanding Mortgagor's covenant to pay the Note and comply with any and
all other terms and conditions of this Mortgage, Mortgagor further covenants that,
as additional and substantial consideration, and as further incentive for
Mortgagee to approve, grant and disburse the Principal Amount in accordance
with the terms hereof, Mortgagor shall acquire, improve, renovate, rehabilitate,
and, thereafter, upon issuance of a final Certificate of Completion (C.C.) or final
Certificate of Occupancy (C.,O.) by the City of Miami Beach, use the' Premises
solely and exclusively as an affordable residential rental property. The rents
charged and the tenants thereof must qualify under the rules and regulations
promulgated by the United States Department of Housing 'and Urban
Development (HUD), at CFR Part 92 (as same may be amended from time to
time).
b) The Principal Amount and the Senior Mortgage shall remain a Lien on the
Premises, superior in dignity to all other liens, titles, claims, mortgages, and /or
other encumbrances, until paid. and /or or otherwise satisfied in -accordance with
the terms and conditions hereof.
c) -Mortgagor covenants that it will own, open, and maintain the Premises as an
affordable ,residential rental apartment building (in accordance with subsection
(a) :above) for a term of fifteen (15) years, commencing upon the issuance by
the City of Miami Beach of a final C.C. or C.O. for the Premises (hereinafter, the
"Affordability Period ").
d) If at any time during the Affordability Period the Premises are no, longer used as
an affordable residential rental property (in accordance With subsection (a)
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above), then Mortgagor shall be deemed to be in default under Section 11 (A) of
this `Mortgage and Security Agreement and, should such default remain uncured
for a period of thirty (30) days after notice thereof shall have been given by
Mortgagee to Mortgagor, the Mortgagee shall avail itself of any and all remedies
under this Mortgage and /or any other Loan Documents (as defined in Section II
hereof), including full and immediate repayment of the Principal Amount.
e) If at any time during the Affordability Period the Premises are sold, transferred, or
refinanced, the Mortgagor shall be responsible for the full and immediate
payment to Mortgagee of the Principal Amount (i.e. for purposes of this
subsection "immediate payment" shall be defined as delivery and receipt of
payment in full of the Principal Amount to Mortgagee no later than on the date of
closing of the proposed sale, transfer, or re- finance).
f) ' With regard to a sale of the Premises pursuant to subsection (e) above,. in
- addition to repayment of the Principal Amount, part of the equity produced by the
sale shall also be paid to Mortgagee as follows:
i. If the Premises are sold between. the first and the tenth year of the
_ Affordability Period, Mortgagee shall be entitled to fifty percent (50 %)
of the profits resulting from such sale, or
ii. If.the Premises are sold between the eleventh and fifteenth year of the
Affordability Period, Mortgagee shall be entitled to twenty five percent
(25 %) of the profits resulting from such sale.
g) In the event of sale (or foreclosure) of the Premises at any time prior to .the
expiration of the Affordability Period,. Mortgagee shall also be given a right of first
refusal to purchase the Premises.
h) Notwithstanding the prohibition in subsection (e) hereof, Mortgagor may be
allowed- to refinance the Premises during the Affordability Period, subject to
Mortgagor's compliance with the following conditions:
i. that.any re- financing is subject to prior written approval by the City of
Miami Beach City Manager,, in his sole and reasonable direction;
ii. that if subordination of the Senior Mortgage is required as a condition
of the re- finance, it shall be approved by resolution of the Miami
Beach City Commission, which approval, if given at all, shall be in the
City Commission's sole and reasonable discretion;
iii. that the amount of the re- financing shall not exceed the then
outstanding balance of the Principal Amount; and
iv. that no "cash outs" will be permitted.
In order to further ensure the enforcement of the Restrictive Covenants contained in .this
Section I, any and all successors, heirs, and assigns herein must obtain the prior written
consent of the City Manager prior to the resale of the Premises.
The Mortgagee reserves the right to review compliance with all affordability
requirements.
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Notwithstanding anything to the contrary contained herein, in the event of a foreclosure
(and subsequent resale) of the Premises, or a deed .in lieu of foreclosure, the Restrictive
Covenants shall lapse and be of no further force and effect.
'The Principal Amount and the Senior Mortgage shall remain a lien superior in dignity to
all other liens, titles, claims, mortgages, and /or other encumbrances, until paid or
otherwise satisfied; provided, however, that upon expiration of the Affordability Period,
(and provided further that Mortgager has complied with all terms and conditions of the
Loan Documents including, without limitation, the terms and conditions of the Restrictive
Covenants), then the Restrictive Covenants shall be deemed satisfied, and shall
therefore be of no further force and effect.
The foregoing Restrictive Covenants (as set fourth in this Section I) shall be considered
and construed as covenants and restrictions recorded against the Premises, and the
same shall bind all persons claiming ownership of all or any portion of the Premises.
The Mortgagor hereby acknowledges and agrees that the Mortgagee is a beneficiary of
these Restrictive Covenants and the Mortgagor shall not release or amend any of these
Restrictive Covenants without the .prior written consent of the City Manager.
Invalidation of all or any of these covenants by a court of competent jurisdiction shall in
no way affect any of the other covenants, which shall remain in full force and effect.
J. Condemnation If all or any material part of the Premises shall be damaged or taken
through condemnation (which term when used in this Mortgage shall include any
damage or taking by any governmental authority, and any transfer by private sale in lieu
thereof), either temporarily or permanently, the entire indebtedness secured hereby shall
at the option of the Mortgagee, become immediately due and payable. The Mortgagee
shall be entitled to all compensation awards, and other payments or relief therefore and
is hereby authorized, at its option, to commence, appear in and prosecute, in its own or
the Mortgagor's name, any action or proceeding relating to any condemnation, and to
settle or compromise any claim in connection therewith. All such compensation, awards,
damages, claims, rights of action and proceeds and the right thereto are hereby
assigned by the Mortgagor to the Mortgagee, who, after deducting there from all its
expenses, including attorney's fees, may release any moneys so received by it to
Mortgagor without affecting the lien of this Mortgage. or may apply the same to the
reduction of the sums secured hereby, and to any prepayment charge herein provided,
and any balance of such moneys then remaining shall be paid to the Mortgagor. The
Mortgagor agrees to execute such further assignments of any compensation, awards,
damages, claims, rights of action and proceeds as the Mortgagee may reasonably
require,. Notwithstanding the foregoing, '.Mortgagee shall allow any .proceeds. or other
sums payable from a condemnation proceeding to be applied for restoration of the
Premises, subject to such terms and conditions as are reasonably satisfactory to
Mortgagee:
K. Hazardous Waste Storage The Mortgagor covenants with the Mortgagee that the
Premises have not been used and will not be used in whole or in part for the storage of
hazardous waste other than in accordance with all applicable governmental
requirements. .
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A. Default A default shall have occurred hereunder if:
(a) The Mortgagor shall fail to pay in full within fifteen (15) days from when
due any installment of principal, interest, or late charges required by the Note,
this Mortgage and otherwise; or
(b) The Mortgagor shall fail to duly observe on time any other covenant,
(including without limitation, failure to comply with or the breach of the Restrictive
Covenants in Section I hereof), condition or agreement of this Mortgage or of any
other instrument evidencing, securing or executed in connection with the
indebtedness secured hereby, (herein this Mortgage, Note and said other
instruments are sometimes collectively. called the "Loan Documents ") and such.
failure remains uncured for a period of thirty (30) days after notice thereof shall
have been given .by the Mortgagee to the Mortgagor (or for an extended period
approved by Mortgagee if such default stated in such notice can be corrected,
but not within such thirty (30) day period, and if the Mortgagor commences such
correction within such thirty (30) day period and thereafter diligently pursues the
same to completion within such extended period)..
(c) Any warranties 'or representations made or agreed to be made in any of
the Documents executed in connection with the Note shall be breached by the
Mortgagor or shall prove to be false or misleading in any material respect; or
(d) Any lien for labor or material or otherwise shall be filed against the
Premises, and such lien is not canceled,' removed, transferred, or bonded off
within thirty (30) days; or
(e) A levy shall be made under any process on, or a receiver be appointed
for, the Premises or any other property of the Mortgagor; or
(f) The Mortgagor shall file a voluntary petition in bankruptcy, or any other
petition -or answer seeking or acquiescing in any reorganization, arrangement,
composition,, readjustment, liquidation or similar relief for the Mortgagor under
any present or future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtor; or
(g) The Mortgagor shall seek or consent to or acquiesce in the appointment
of any trustee, receiver or liquidator of the Mortgagor or of all or any part of the
Premises. or of any or all of the rents, revenues, issues., earnings, profits or
r income thereof; or
(h) The Mortgagor shall make any general assignment for the benefit of
creditors; or
(i) In any legal. proceeding the Mortgagor. shall be adjudged to be insolvent
or unable to pay the Mortgagor's debts as they become due; or
(j) Thee Mortgagor shall do, or shall omit to do, any act, or any event shall
occur, as a result of which any obligation of the Mortgagor, not arising hereunder,
may be declared immediately due and payable by the holder thereof; or
(k) Failure by Mortgagor to comply with the Restrictive Covenants set forth in
Section I herein (see also subsection (b) hereof); or
(1) An Event of Default occurs under the terms of the documents executed in
connection with the Note.
B. Acceleration of Maturity If a default shall have occurred hereunder, then the whole
unpaid principal sum of the indebtedness secured hereby with interest accrued thereon
shall, at'. the option of the. Mortgagee, become due and payable without notice. or
demand, time being of the essence of - this Mortgage and of the Note secured hereby;
and no omission 'on the part of the Mortgagee to exercise such .option when entitled so
to do shall be considered as a waiver of such right.
C. Right of Mortgagee to Enter and Take Possession
(a) If any default shall have occurred and be continuing beyond any
applicable grace period, the Mortgagor, upon demand of the Mortgagee, shall
forthwith surrender to the Mortgagee the actual possession. of the Premises and
if, and to the extent permitted by law, the Mortgagee may enter and take
possession of the Premises and may exclude the Mortgagor and the Mortgagor's
agents and employees wholly there from.
For the purpose of carrying out the provisions of this p aragrap h, the
_ (b ) p p Y� 9 p _.
Mortgagor hereby constitutes and appoints the Mortgagee the true and lawful
attorney in fact of the Mortgagor to do and perform, from time to time, any and all
actions - necessary and incidental to such purpose and ,does; by these presents,
ratify and confirm any and all actions of said attorney in fact, in the Premises.
(c) Whenever all such defaults have been cured and satisfied, the Mortgagee
shall surrender possession of the Premises to the-Mortgagor, provided that the
right of the Mortgagee to take possession, from time to time,, pursuant to this
subparagraph shall exist if any subsequent default shall occur and be continuing.
D. Appointment of a Receiver and Foreclosure
(a) If a default shall have occurred hereunder, then the whole debt secured
by this Mortgage, with all interest thereon, and all other amounts hereby secured
shall, at the option of Mortgagee, become immediately due and payable, and.
may forthwith or at any time thereafter be collected by suit at taw, foreclosure of
or other proceeding upon this Mortgage or by any other proper, legal or equitable
procedure without declaration of such option and without notice.
8 .
(b) Upon, or at any time after, the filing of a complaint to foreclose this
Mortgage, the court in which such complaint is filed may appoint a receiver of the
Premises. Such appointment may be made either before or after sale, without
notice, without regard to. the solvency or insolvency of Mortgagor at the time of
application for such receiver and without regard to the then value of - the
Premises. Such receiver, shall have power to collect the rents, issues and profits
of the Premises during the pendency of such foreclosure suit, and in case of a
sale and a deficiency, during the full statutory period of redemption, if any,
whether there be redemption or not, as well as during any further times when
Mortgagor except for the intervention of such receiver, would be entitled to collect
such rents, issues and profits, and all other powers which may be necessary or
are usual in such cases for the - protection, possession, control, management and
operation of the Premises during the whole of said period.
(c) Mortgagor shall deliver. to Mortgagee at any time on its request, all
agreements for deed, contracts, leases, abstracts, title insurance policies,
muniment of title, surveys and other papers relating to the Premises, and in case
of foreclosure thereof and failure to redeem, the same shall be delivered to and
become the property of the person obtaining a deed to the Premises by reason of
such foreclosure.
E. Discontinuance of Proceedings and Restoration.. of. the Parties In case the Mortgagee
shall have proceeded to enforce any right or remedy under this Mortgage by receiver,
entry or otherwise, and such proceedings shall have been discontinued or abandoned
for any reason or shall have been determined adverse .to the Mortgagee, then and in
every such case the Mortgagor and the Mortgagee shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of the Mortgagee
shall continue as if no such proceeding had been taken.
F. Remedies Cumulative No right, power or remedy conferred upon or reserve_ d by the
Mortgagee by this Mortgage. is intended to be exclusive of any other right, power or
remedy, but each and every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other, right, power ' and remedy given
hereunder . or now or hereafter existing at law or in equity or by statute.
III.
A. Successors and Assigns Included in Parties Whenever in this Mortgage one of the
parties hereto is named or referred to, the heirs, legal representatives, successors and
assigns of such parties shall be included and all covenants and agreements contained in
this indenture by or on behalf of the Mortgagor and by or on behalf of the Mortgagee
shall bind and inure to the benefit of their respective heirs, .legal representatives,
successors and assigns, whether so expressed or not. Provided, however, that the.
Mortgagor shall have no right to assign its obligations hereunder without the prior written
consent of the Mortgagee, which consent shall not be unduly withheld, conditioned or
delayed.
B. Headings The headings of the sections, paragraphs and subdivisions of this Mortgage
are for the convenience of reference only, are not to be considered a part hereof and
shall- not limit or otherwise affect any of the terms hereof.
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C. Invalid Provisions to Affect No Others If fulfillment of any provision hereof or, any
transaction related hereto or to the Note, at.the time performance of such provisions
shall be due, shall involve transcending the limit of validity prescribed by law, then ipso,
facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any,
clause or provision herein contained operates or would prospectively operate to
invalidate this Mortgage in whole or in part, then such clause or provision only shall be
held for naught, as though not herein- contained, and the remainder of this Mortgage
shall remain operative and in full force and effect. Notwithstanding any provision
contained herein, the total liability of Mortgagor for payment of interest, including service
charges, penalties or any other fees pursuant to this Agreement,. shall not exceed the
maximum amount of such interest permitted by applicable law to be charged, and if any
payments by Mortgagor include interest in excess of the maximum allowable amount
then said excess shall be applied to the reduction -of the unpaid Principal Amount due
pursuant hereto.
D. Number and Gender Whenever the singular or plural number, masculine or feminine or
neuter gender is used herein,, it shall equally include the other.
E. Future Advances. (Any loan of money from Mortgagee to Mortgagor made within fifteen
(15) years from the date hereof). The total amount of the loan from Mortgagee to
Mortgagor may decrease or increase from time to time, but the total unpaid aggregate
balance secured by this Mortgage at any one time shall not exceed,, $2,549,5 5 1. 00, plus
interest thereon and any disbursements made for the payment of taxes, levies,
.insurance or other liens on the Premises, with interest on such disbursements.
IV.
A. Notice Any notice or other communication required or permitted to be given hereunder
shall' be sufficient if in writing and delivered in person or sent by United States Certified
Mail, postage prepaid, to the parties being given such notice at the following addresses:
MORTGAGOR: MIAMI BEACH COMMUNITY DEVELOPMENT
CORPORATION
945 - Pennsylvania Avenue
Miami Beach, FL 33139
Attention: Roberto Datorre, President
..MORTGAGEE: CITY OF MIAMI BEACH
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
With a copy to: CITY OF MIAMI BEACH
Office of Real Estate,
Housing & Community Development
CITY OF MIAMI BEACH
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Director
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Any party may change said address by giving the other parties hereto notice of such change of
address. Notice given as hereinabove provided shall be deemed given on the date of its
deposit in the United States Mail and, unless sooner received, shall be deemed.received by the
party to whom it is addressed on the third calendar day following the date on which said notice
is deposited in the mail, or if an courier system is used, on the date, of delivery of the notice.
V.
A. Assignment of Rents and Leases As further security for payment of principal interest
and other amounts due Mortgagee now or hereafter secured hereby, Mortgagor hereby
transfers, assigns and sets over unto Mortgagee all leases, if any, now or hereafter
entered into by Mortgagor with respect to all or any part of the Premises, and all
renewals, extensions, subleases or assignments thereof, and all other written or oral
occupancy agreements, by concession, License or otherwise, together .with all of the
rents, income, receipts, revenues, issues and profits arising there from. Mortgagee shall
have, in addition to all other rights and remedies hereunder, those .rights of a mortgagee
under Florida Statutes Section 697.07, as now or.hereafter in effect.
B. Security Agreement This instrument also creates a security interest in any and all
equipment and furnishings I as are considered or determined to be personal property or
fixtures, together with all replacements, substitutions, additions, products and proceeds
thereof, in favor of the Mortgagee under the Florida Uniform Commercial Code to secure
payment of principal, interest and other amounts due Mortgagee now or hereafter
secured hereby, and Mortgagee shall also have all the rights and remedies of a secured
party under the Florida Uniform Commercial Code, and without limitation upon or in
derogation of the rights and remedies created and accorded to the Mortgagee by this
Mortgage pursuant to the common law or any other laws of the State of Florida or any
other jurisdiction, it being understood that the rights and remedies of Mortgagee under
the Florida Uniform Commercial Code shall be cumulative and in addition to all other
rights and remedies of Mortgagee arising under the common law or any other laws of the
State of Florida or any other jurisdiction.
C. Choice of Law This Mortgage is to be construed in all respects and enforced according
to the Laws of the State of Florida.
D. Binding Effect This Mortgage shall be binding upon and inure to the benefit of the
Mortgagor and Mortgagee hereto, and their respective heirs, successors and assigns.
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IN WITNESS WHEREOF, Mortgagor has caused this Mortgage be executed on the
date first above written.
WITNESSES: - MORTGAGOR:
MIAMI BEACH COMMUNITY DEVELOPMENT
CORPORATION, a Florida not- for - profit
corporation
Signatu .e T Signature I Lip
Pr' ame Print Name and Title
S i re +�
t ail
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI -DADS
The fonnt=in 9 Mortgage and Security Agreement was acknowledged before me this
day of , 2010, by Roberto Datorre, as President of Miami Beach Community
Development Corporation, a Florida not - for - profit corporation. He is personally known tome or
has produced Florida Driver's License No. as identi ica .
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State of FI at Large
My commission expires:
APPROVED AS TO
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EXHIBIT "All
'LEGAL DESCRIPTION
7871 Crespi Boulevard, Miami Beach, Florida 33141
2 -3 53 42, Biscayne Beach Sub PB 44 -67, LOTS 26 & 27, BLK 10 Lot
Size 100,000 x 115 0,R.1 66 12941.COC 24310- 0.623 02 2006 1
. 13
1 P i. bp .9 5 rs
RE RDED 11 !20 0 -, `;``i i
Return to: (enclose self - addressed stamped envelope) H ii i -
Name
Gerald K. Schwartz, Esquire
Address:
1691 Michigan Avenue Suite 320
Miami Beach, Florida 33139
This Instrument Prepared by:
Gerald K. Schwartz, Esquire
1691 Michigan Avenue Suite 320 :
Miami Beach, Florida 33139
SPACE ABOVE THIS LINT FOR PROCESSING DATA SPACE ABOVE THIS LINE. FOR PROCESSING DATA
STATE OF FLORIDA INTANGIBLE TAXES AND DOCUMENTARY
STAMPS IN THE -AMOUNT REQUIRED BY LAW WITH ,REGARD
TO THE. INDEBTEDNESS BEING EXTENDED HEREBY WERE
AFFIXED TO OR PROOF OF PAYMENT NOTED ON THE
FLORIDA REAL ESTATE MORTGAGE RECORDED IN OFFICIAL
RECORDS - BOOK 27170 PAGE 2725 - 27371 OF THE. PUBLIC
RECORDS OF MIAMI -DADE COUNTY, FLORIDA. THE AMOUNT
OF INDEBTEDNESS .UNDER THE NOTE IS NOT BEING
INCREASED BY THIS MODIFICATION. DOCUMENTARY STAMPS
OR INTANGIBLE TAX ARE NOT DUE IN CONNECTION
.HEREWITH.
MODIFICATION OF PROMISSORY NOTE AND FLORIDA REAL
ESTATE MORTGAGE
rliS 1°vj_ODYr IC'A IOl'd OF NOTE and MORTGAGE dated as of ii/1I(,
2011 ( "Agreement "), by and among MIAMI BEACH COMMUNITY DEVELOPMENT
CORPORATION a Florida not for profit corporation ( "Borrower" or "Mortgagor "),
MADELEINE VILLAGE, LLC, a Florida limited liability,not for profit corporation whose
sole Member and Managing Member is the Mortgagor (`.`Madeleine ") and the CITY OF MIAMI
BEACH, FLORIDA, a Florida municipal corporation ( "Mortgagee ").
WITNESSETH:
The circumstances which give rise to this Agreement are as follows:
WHEREAS, Mortgagee is owner and holder of a certain Florida Real Estate Mortgage, and
Security Agreement executed by Mortgagor on January 10, 2010 encumbering certain property
`located in Miami -Dade County, Florida, as described therein and also described in Exhibit "A"
attached 1' �ereto (the "Property "), which Mortgage secured the payment of that certain Promissory
Note dat d January 29, 2010 in the original principal sum of TWO MILLION,- THREE
t
HUNDRED, SEVENTY SIX THOUSAND, ONE HUNDRED EIGHTY ONE DOLLARS and
FIFTY THREE CENTS ($2,376,181.53)) (the "Note"), and which Mortgage was filed for record
on February 3, 2010 in Official Records Book 27170, Page 2725 -27371 Public Records of Miami -
Dade County; Florida (the "Mortgage "); and
WHEREAS, Mortgagor has requested and Mortgagee has agreed to pen Mortgagor to
simultaneously herewith convey the Property to MADELEINE.
NOW THEREFORE, for and in consideration of TEN AND 00 /100 DOLLARS ($10.00)
and other good and valuable consideration, the receipt, .sufficiency and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. The above recitals are true and correct and are 'incorporated herein by reference.
2. Except as specifically modified hereby, all of the terms, provisions and representations of the'
Note, and Mortgage together with` all other loan documents executed by Mortgagor in coiulection
therewith; (collectively sometimes hereafter referred to as the "Loan Documents ") are hereby
specifically reaffinned by Madeleine and are incorporated herein by this reference.
3. Simultaneous with the conveyance of the Property to Madeleine, Miami Beach Community
Development Corporation is hereby released from all obligations set forth in the Note, Mortgage
and other Loan Documents and Madeleine does hereby assume all obligations of the Mortgagor and
as the new successor mortgagor, agrees to comply with the terns and conditions as set forth in the
Note, Mortgage and other Loan Documents in the same manner and to the same extent as if
Madeleine were the original mortgagor.
4. The provisions of this Agreement shall control in the event of any conflict with the provisions
of the Loan Documents, the unaffected provisions of which _ are specifically reaffirmed and
incorporated herein by reference. Madeleine further agrees that, except as specifically provided by
this Agreement, no part of the Note, Mortgage or other Loan Documents are in any way altered,
arnended or changed. Madeleine hereby affirms and validates the full force and effect. of the Note,
Mortgage and other Loan Documents as modified hereby.
5. Madeleine anel Mortgagor hereby affirm, warrant and represent that all of the warranties and
representations made in the Note, Mortgage and any other documents or instruments recited herein or
executed with respect thereto directly or indirectly, are true and correct as of the date hereof and that
Mortgagor is not in default of any of the foregoing nor aware of any default with respect thereto, and
that Mortgagor has no defense or right of offset with respect to any indebtedness to Mortgagee.
Madeleine and Mortgagor hereby releases Mortgagee from any cause of action against it existing as
of the date of execution hereof. The rights and defenses being waived and released hereunder
include without limitation any clailil'or defense based on the Mortgagee having charged or collected
interest at a rate greater than that allowed to be contracted for by applicable law as changed fiom
time to time, provided, however, in no event shall such waiver and release be deemed to change or
modify the terns of the Note or Mortgage which provide that sums paid or received in excess of the
maximum rate of interest allowed to be contracted for or by applicable law, as changed from time to
time, reduce the principal sum due, said provision to be in full force and effect.
2
Q 6.. During the tenn of the Mortgage, Miami-Beach Community Development Corporation as the
sole member of Madeleine, shall not, without the written consent of the Mortgagee; which consent
may be •unreasonably withheld, sell, assign, transfer or encumber any portion of its membership
interest in Madeleine.
7. Paragraph I. c) of-the.Mortgage be.and is hereby modified and amended to. provide that the
Affordability Period is extended from a tern of fifteen (15) years to a term of 30 years.
8. This Agreement shall not be construed more strictly against either party by virtue of the
preparation hereof and defined terns in the.Note shall be like wise defined herein.
IN WITNESS WHEREOF, the Mortgagor, Madeleine and Mortgagee have executed this
Agreement effective as of the day and year noted above.
MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION., a
Florida For Profit corporation
By:
„
ROBERT6 DATORRE, President
STATE'OF FLORIDA ) SS
COUNTY OF MIAMI -DADS ).
I HEREBY CERTIFY that on this day, before ire, an officer duly authorized in the State
aforesaid' and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by ROBERTO DATORRE. as President of MIAMI BEACH
COMMUNITY DEVELOPMENT CORPORATION a Florida Not For Profit corporation, freely
and voluntarily under authority duly vested in them by said limited liability company and that the
seal affixed thereto is the true seal of said limited liability company. Tle are personally know to
jDe�r have produced as identification:
WITNESS my hand and official seal in the County and State aforesaid this Z5 day of
6,o 2011..
My Commission Expires: Notary Public
Typed, printed or stamped name of Notary Public
2o"�nr P�0Gn Notary Public State of Florida
. ® Bian a Fonseca
9� o My Commission EE027487
OF �o� Expires 09/19/2094
MADELEINE VILLAGE, LLC., a Florida limited
liability not for profit corporation
By: ,MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION a Florida Not
For Profit corporation, the Managing Member
By:
ROBERTO TORRE, President
STATE OF FLORIDA ) SS
COUNTY OF MIAMI -DADS )
I HEREBY CERTIFY that oil this day, before me, an officer duly authorized in the State aforesaid
and in the County aforesaid to take acknowledgments, the foregoing instrument was acknowledged
before me by ROBERTO DATORRE, President of MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION a Florida Not For Profit corporation, the Managing Member
of MADELEINE VILLAGE, LLC., a Florida limited liability not for profit corporation freely and
voluntarily under authority duly vested in him by said corporation and that the seal affixed thereto is
the true corporate seal of said corporation. He is personally known to m e or has. provided
as identification.
WITNESS my hand and official seal in the County and State ?ast aforesaid this , day of
tw U lk 1 2011.
Notary,, Public, State of Florida at Large
My Commission Expires: k Vrdo V Ct
Typed, printed or stamped name of Notary
�p1PAY p f" Notary Public State of Florida
Bianga Fonseca THE 'CITY OF MIAMI BEACH,
My commission EE027487 FLORIDA a Florida municipal corporation
F oF Flo Expires 09/19/2014 p
By: t
STATE OF FLORIDA ) SS:
COUNTY OF MIAMI -DADS )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by o � E G 0 K( �Y_L z� of the CITY OF MIAMI
BEACH, FLORIDA, a Florida.Municipal corporation, freely and voluntarily under authority duly
vestedin them by said limited liability company and that the seal affixed thereto is the true seal of
said limi ed liability company. They are ersonally known to me or have produced
tv as identification.
. 4
WITNESS m Hand and official seal in the Count and State last aforesaid this o�8 "day of
y y
Atv Y 2011,
o T' C . PA C L- VL�
My Commission Expires: Notary Public
NOTARY PUBLIC -STATE OF FLORIDA
Robert E. Parcher
:Commission # llD896080 Typed printed or stamped name of Notary Public
Expires: JUNE 03, 2013
BONDED THRU ATLAfv 11C BONDING CO., INC.
5
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EXHIBIT "A"
LEGAL DESCRIPTION
Lots 26 and 27, in Block 10, of 0ISCAYNE REACH SUBDIVISION,
according to the Plat thereof, as recorded in Plat Rook 44, at Page 617,
of the Public Records of Miami -Dade County, Florida.
(American Land Title Association Loan Policy - 10- 17 =92) (With Florida Modifications)
Old Republic National Title Insurance Company
MORTGAGEE TITLE INSURANCE POLICY
SUBJECT TO THE EXCLUSIONS' FROM COVERAGE, THE EXCEPTIONS FROM
COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND
STIPULATIONS, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, a Minnesota
corporation, herein called the Company, `insures, as of Date of Policy. shown in Schedule A,
against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or
incurred by the insured by reason of:
I . Title to the estate or interest described -in Schedule A being vested other than as stated
therein;
2. Any defect in or lien or encumbrance on the title; .
3. Unmarketability of the title;
4. Lack of a right of access to and from the land;
5. The invalidity or unenforceability of the lien of the insured mortgage upon the title;
6. The priority of any lien or encumbrance over the lien of the insured mortgage;
7. Lack of priority of the lien of the insured mortgage over any statutory lien for services,
labor or material;
(a) arising from. an improvement or work related to the land which, is contracted for or.
commenced prior to Date of Policy; or
(b) arising from an- improvement or work related to the land land which is contracted for or
commenced subsequent to Date of Policy and which is financed in whole or in part by
proceeds of the indebtedness secured by the insured mortgage which at Date of Policy
the insured has advanced or is obligated to advance;
8. The invalidity or unenforceability of any assignment of the insured mortgage, .provided the
assignment is shown in Schedule A, or. the failure of the assignment shown in Schedule'A
to vest title to the insured mortgage in the named insured assignee free and clear of all
liens.
The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title
or the lien of the insured mortgage, as insured, but only to the extent provided in the Conditions.
and Stipulations.
In Witness Whereof, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY ' has
caused this policy to be signed and sealed as of Date of Policy shown in Schedule A, the policy
to become valid when countersigned by an authorized signatory.
OLCI REPUBLiG NiAT ONALTITLE- INSURANCE COMPANY`
A S*66, rprra an}
By
Attes t � Sxretary
SERIAL
MPF- 8028856
FORM MPF (rev. 12/10) File Number: DA- 0935 -01 DoubleTime® 5.1.7
i r
Old Republic National Title Insurance Company
MORTGAGEE POLICY
Schedule A
Policy No.:' Effective Date: Agent's File Reference:
MPF- 8028856 February 3, 2010 @ 08:53 AM DA- 0935 -01
Amount of Insurance: $2,376,181.53
1. Name of Insured: City of Miami Beach, a Florida Municipal Corporation
2. The estate or interest in the land described in this Schedule and which is encumbered by the insured mortgage is a Fee
Simple and is at the effective date hereof vested in:
Madelaine Village, LLC., a Florida limited liability company
3. The land referred to in this policy is described as follows:
Lots 26 and 27, in Block 10, of BISCAYNE BEACH SUBDIVISION, according to the Plat thereof, as
recorded in Plat Book 44, at Page 67, of the Public Records of Miami -Dade County, Florida.
4. The mortgage, herein referred to as the insured mortgage, and the assignments thereof, if any, are described as follows:
Mortgage in the sum of $2,376,181.53 from Miami Beach Community Development Corporation, Inc., a
Florida Non Profit Corporation in favor of City of Miami Beach, a Municipal Corporation; dated 1/29/2010
and recorded on 2/3/2010 in Official Records Book 27170, Page 2725, as Document No.
CFN2010R0074400, subsequently modified via Modification of Promissory Note and Florida Real Estate
Mortgage, dated on 1/25/2011 and recorded on 2/14/2011 in Official Records Book 27586, Page 0147, as
Document No. CFN2011 R0099090 of the Public Records of Miami -Dade County, Florida.
OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY
Agent No.: 3262
Issuing Agent:
Law Office of Gerald K. Schwartz, P.A.
1691 Michigan Avenue.
Suite 320
Miami Beach, FL 33139 v
nt's Si
gna e
Loan Number: Pagel of 2
Form MPF -SCH. A (rev. 0 7/09) DoubleTime® 5.1.7
Old Republic National Title Insurance Company
MORTGAGEE POLICY
Schedule B
Policy No.: Agent's File Reference:
MPF- 8028856 DA- 0935 -01
This policy does not insure against loss or damage by reason of the following:
1. The lien of all taxes for the year 2010 and thereafter, which are not yet due and payable.
2. All matters contained on the Plat of Biscayne Beach Subdivision, as recorded in Plat Book 44, Page 67, Public
Records of Miami -Dade County, Florida.
3. Declaration of Restrictions recorded in Deed Book 2602, Page 483, Public Records of Miami -Dade County, Florida.
4. Resolution No. R- 1409 -89 recorded in O.R. Book 14364, Page 1996, Public Records of Miami -Dade County, Florida.
5. Riparian and littoral rights are not insured.
6. Rights of the United States of America and/or the State of Florida to any portion of said land which has been created by
artificial means or has accreted. to any such portion as so created.
7. Those portions of the property herein described being artificially filled in land in what was formerly navigable waters,
are subject to the right of the United States Government arising by reason of the United States Government control
over navigable waters in the interest of navigation and commerce.
8. The rights, if any, of the public to use as a public beach or recreation area any part of the land lying between the body
of water abutting the subject property and the natural line of vegetation, bluff, extreme high water line, or other
apparent boundary lines separating the publicly used area from the upland private area.
9. Subject to rights of tenants under unrecorded leases, if any.
10. Liability under the policy to be issued is limited to the amount of the proceeds of the mortgage identified in Schedule A
hereof actually disbursed in good faith without knowledge of any objection to the title..
11. Encroachments as shown by that certain survey dated 12/09/2009 prepared by Mojarena & Associates, Inc., under Job.
No. 09 -0292.
1. Overhead utility lines.
2. Portion of the 3 foot high- chain is encroaching over the Northeasterly boundary line.
3. Portion of the rear concrete the 5 foot high metal fence, and the wood dock are encroaching over the Southeasterly
boundary line.
Page 2 of 2
Form MPF -SCK B (rev. 07109) DoubleTime® 5.1.7
FLORIDA FORM 8.1 ENVIRONMENTAL PROTECTION LIEN ENDORSEMENT
Old Republic National Title Insurance Company
Endorsement No. 1 to Policy No.: MPF- 8028856
The Company insures the Insured against loss or damage sustained by reason of the lack of priority of the lien of the Insured
Mortgage over:
(a) any environmental protection lien which, at Date of Policy, is recorded in those records established under state
statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to
purchasers for value and without knowledge, or filed in the records of the clerk of the United States District Court
for the district in which the Land is located, except as set forth, if at all, in Schedule B; or
(b) any environmental protection lien provided for by any state statute in effect at Date of Policy, except environmental
protection liens provided for by the following state statute(s):
NONE
This Endorsement is made a part of the Policy and is subject to all of the terms and provisions thereof and of any prior
endorsements thereto. Except to the extent expressly stated, it neither modifies any of the terms and provisions of the Policy
and any .prior endorsements, nor does it extend the effective date of the Policy and any prior endorsements, nor does it
increase the face Amount of Insurance.
In, Witness Whereof, the Company has caused its name and seal to be hereunto affixed by its duly authorized Agent as of the
date shown herein, the effective date of this Endorsement.
Law Office of Gerald K. Schwartz, P.A. - 3262
Name of Agent Agent No.
Old Republic National Title Insurance Company
By Mark A. Bilbrey
g is Signature President
Gerald K. Schwartz
Attorney at Law
Environmental Protection Lien Endorsement (Florida Form 8.118.1 -06) (rev. 09109)
File Number: DA- 0935 -01 DoubleTime® 5.1.7
FLORIDA ENDORSEMENT FORM 9 (3127192) (RESTRICTIONS, EASEMENTS, MINERALS)
Old Republic -National Title Insurance Company
Endorsement No. 2 to Mortgagee Policy No.: 'MPF- 8028856
The Company insures the owner of the indebtedness secured by the insured mortgage against loss or damage sustained by reason of.
l . Any incorrectness in the assurance that, at Date of Policy
(a) There are no covenants, conditions or restrictions under which the lien of the mortgage referred to in Schedule A can be divested,
subordinated or extinguished, or its validity, priority or enforceability impaired.
(b) Unless expressly excepted in Schedule B:
(1) There are no present violations on the land of any enforceable covenants, conditions or restrictions, nor do any existing
improvements on the land violate building setback lines shown on a plat of subdivision recorded or filed in the public records. .
(2) Any instrument referred to in Schedule B as containing covenants, conditions or restrictions on the land does not, in addition,
(i) establish an easement on the land; (ii) provide a lien for liquidated damages; (iii) provide for a private charge or
assessment; (iv) provide for an option to purchase, a right of first refusal or the prior approval of a future purchaser or
occupant.
(3) There is no encroachment of existing improvements located on the land onto adjoining land, nor any encroachment onto the
land of existing improvements located on adjoining land.
(4) There is no encroachment of existing improvements located on the land onto that portion of the land subject to any easement
excepted in Schedule B.
(5) There are no notices of violations of covenants, conditions and restrictions relating to environmental protection recorded in
the public records.
2. Any future violation on the land of an existing covenant, condition or restriction occurring prior to the acquisition of title to the estate or
' interest in the land, provided the violation results in:
(a) invalidity, loss of priority or enforceability of the lien of-the insured mortgage; or
(b) loss of title. to the estate or interest in the land if the insured shall acquire title in satisfaction of the indebtedness secured by the
Insured mortgage.
3. Damage to existing improvements (excluding lawns, shrubbery or trees):
(a) which are located on or encroach upon that portion of the land subject to any easement excepted in Schedule B. which damage
results from the exercise of the right to maintain the easement for the purpose for which it was granted or reserved; or
(b) which results from the future exercise of any right to use the surface of the land for the extraction or development of minerals
excepted from the description of the land or excepted in Schedule B.
4. Any final court order or judgment requiring the removal from any land adjoining the land of any encroachment excepted in Schedule B.
5. Any final court order or judgment denying the right to maintain any existing improvement on the land because of any violation of
covenants, conditions or restrictions or building setback lines shown on a plat of subdivision recorded or filed in the public records.
Wherever-in this endorsement the words "covenants, conditions or restrictions" appear, they shall not be deemed to refer.to or include the
terms, covenants, conditions or limitations contained in an instrument creating a lease.
As used in paragraph l (b)(1) and 5, the words "covenants, conditions or restrictions" shall not be deemed to refer to or include any
covenants, conditions or restrictions relating to environmental protection.
This endorsement is made a part of the policy and is subject to all of the terms and provisions thereof and any prior endorsements thereto.
Except to the extent expressly stated, it neither modifies any of the terms and provisions of the policy and any prior endorsements, nor does it
extend the Effective Date of the policy and any prior endorsements, nor does it increase the face amount thereof.
Law Office of Gerald K. Schwartz, P.A. 3262
Name of Agent Agent No.
Old Republic National Title Insurance Company
Mark A. Bilbrey
Agent's i gigiure President .
Gerald K. Schwartz
Attorney at Law
Florida Endorsement Form 9 (FF9) (rev. 07109)
File Number: DA- 0935 -01 DoubleTime® 5.1.7
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which
arise by reason of
1. (a) Ahy law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting
or relating to: (1) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land;
(iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or
the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or notice of a defect,
lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
(b) Any,governmental police power not excluded by. (a) above, except.to the extent that a notice of the exercise thereof or a notice of a defect lien or encumbrance
resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from'coverage any taking
which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters:
(a) created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at Date,of Policy, but known to the insured claimant and not disclosed in writing to the Company by
the insured claimant prior to the date the insured claimant became an insured under this policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy (except to the extent that this policy insures the priority of the lien of the-insured mortgage over any statutory lien
for services, labor or material); or
(e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage.
4. Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner
of the indebtedness, to comply with applicable doing business laws of the state in which the land is situated.
5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured mortgage and is based -
upon usury or any consumer credit protection or truth in lending law.
6. Any statutory lien for services, labor or materials (or the claim of priority of any statutory lien for services, labor or materials over the lien of the insured mortgage) arising
from an improvement or work related to the land which is contracted for and commenced subsequent to Date of Policy and is not financed in whole or in part by proceeds
of the indebtedness secured by the insured mortgage which at Date of Policy the insured -has advanced or is obligated to advance.
7. Any claim, which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason of the operation of federal bankruptcy, state
insolvency, or similar creditors' rights laws, that is based on:
(a) the transaction creating the interest of the insured mortgagee being deemed a fraudulent conveyance or fraudulent transfer; or
(b) the subordination of the interest of the insured mortgagee as a result of the application of the doctrine of equitable subordination; or
(c) the transaction creating the interest of the insured mortgagee being deemed a preferential transfer except where the preferential transfer results from the failure:
(i) to timely record the instrument of transfer. or
(ii) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor.
CONDITIONS AND STIPULATIONS
1, DEFINITION OF TERMS 2. CONTINUATION OF INSURANCE
The following terms when used in this policy mean: (a) After Acquisition of Title. The coverage of this policy shall continue in force as
(a) "insured ": the insured named in Schedule A. The term "insured" also includes of Date of Policy in favor of (i),an insured who acquires all or any part of the estate
(i) the owner of the indebtedness secured by the insured mortgage and each or interest in the land by foreclosure, trustee's sale, conveyance in lieu of foreclosure,
successor in ownership of the indebtedness except a successor who is an obligor or other legal matter which discharges the lien of the insured mortgage; (ii) a
under the provisions of Section 12(c) of these Conditions and Stipulations transferee of the estate or interestso acquired from an insured corporation, provided'
(reserving, however, all rights and defenses as to any successor that the Company the transferee is the parent or wholly owned subsidiary of the insured corporation,
would have had against any predecessor insured, unless the successor acquired the and their corporate successors by operation of law and not by purchase, subject to
indebtedness as a purchaser for value without knowledge of the asserted defect, any rights or defenses the Company may have against any predecessor insureds; and
lien, encumbrance, adverse claim or other matter insured against by this policy as. (iii) any governmental agency or governmental instrumentality which acquires all or
affecting title to the estate or interest in the land); any part of the estate or interest pursuant to a contract of insurance or guaranty
(ii) any governmental agency or governmental instrumentality which is an insuring or guaranteeing the indebtedness secured by the insured mortgage.
insurer or guarantor under an insurance contract or guaranty insuring or (b) After Conveyance of Title. The coverage of this policy shall continue in force as
guaranteeing the indebtedness secured by the insured mortgage, or any part thereof, of Date of Policy in favor of an insured only so long as the insured retains an estate
whether named as an insured herein or not; or interest in the land, or holds an indebtedness secured by a purchase money
(iii) the parties designated in Section 2(a) of these Conditions and Stipulations. mortgage, given by a purchaser from the insured, or only so long as the insured shall
(b) "insured claimant ": an insured claiming loss or damage. have liability by reason of covenants of warranty made by the insured in any transfer
(c) "knowledge" or "known ": actual knowledge, not constructive knowledge or or conveyance of the estate or interest. This policy shall not continue in force in favor
notice which may be imputed to an insured by reason of the public records as of any purchaser from the insured of either (i) an estate or interest in the land, or (ii)
defined in this policy or any other records which impart constructive notice of an indebtedness secured by a purchase money mortgage given to the insured.
matters affecting the land. (c) Amount of Insurance. The amount of insurance after the acquisition or after the
(d) "land ": the land described or referred to in Schedule A, and improvements ' conveyance shall in neither event exceed the least of
affixed thereto which by law constitute real property. The term "land" does not (i) the Amount of Insurance stated in Schedule A;
include any property beyond the lines of the area described or referred to in (ii) the amount of the principal of the indebtedness secured by the insured
Schedule A, nor any right, title, interest, estate or easement in abutting streets, mortgage as of Date of Policy, interest thereon, expenses of foreclosure, amounts
roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or advanced pursuant to the insured mortgage to assure compliance with laws or to
limit the extent to which a right of access to and from the land is insured by this protect the lien of the insured mortgage prior to the time of acquisition of the estate
policy. or interest in the land.and secured thereby and reasonable amounts expended to
(e) "mortgage ": mortgage, deed of trust, trust deed, or other security instrument. prevent d'eterio'ration of improvements, but reduced by the amount of all payments
(f) "public records ": records established under state statutes at Date of Policy for made; or
the purpose of imparting constructive notice of matters relating to real property to (iii) the amount paid by any governmental agency. or governmental
purchasers for value and without knowledge. With respect to Section 1(a)(iv) of the instrumentality, if the agency or instrumentality is the insured claimant, in the
Exclusions from Coverage, "public records" shall also include environmental acquisition of the estate or interest in satisfaction of its insurance contract or
protection liens filed in the records of the clerk of the United States district court guaranty.
for the district in which the land is located. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT
(g) "unmarketability of the title ": an alleged or apparent matter affecting the title to The insured shall notify the Company promptly in writing (i) in case of any
the land, not excluded or.excepted from coverage, which would entitle a purchaser litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come to
of the estate or interest described in Schedule A or the insured mortgage to be an insured hereunder of any claim of title or interest which is adverse to the title to the
released from the obligation to purchase by virtue of a contractual condition estate or interest or the lien of the insured mortgage, as insured, and which might cause
requiring the delivery of marketable title. loss or damage for which the Company may be liable by virtue of this policy, or (iii) if title
to the estate or interest or the lien of the insured mortgage, as insured, is rejected as
unmarketable.
If prompt notice shall not be given to the Company, then as to the insured all liability of (i) to pay or tender payment of the amount of insurance under this policy
the Company shall terminate with regard to the matter or matters for which prompt together with any costs, attorneys' fees and expenses incurred by the insured
notice is required; provided, however, that failure to notify the Company shall in no claimant, which were authorized by the Company, up to thetime of payment or
case prejudice the rights of any insured under this policy unless the Company shall be tender of payment and which the Company is obligated to pay; or
prejudiced by the failure and then only to the extent of the prejudice. (ii) to purchase the indebtedness secured by .the insured mortgage for the
4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF amount owing thereon together with any costs, attorneys' fees and expenses incurred
INSURED CLAIMANT TO COOPERATE by the insured claimant which were authorized by the : Company up to the time of
(a) Upon written request by the insured and subject to the options contained in purchase and which the Company is obligated to pay.
Section 6 of these Conditions and Stipulations, the Company, at its own cost and If the Company offers to purchase the indebtedness as herein provided, the owner of the
without unreasonable delay, shall provide for the defense of an insured in ' indebtedness shall transfer, assign, and convey the indebtedness and the insured mortgage,
litigation in which any third party asserts a claim adverse to the title or interest as together with any collateral security, to the Company upon payment therefor.
insured, but only as to those stated causes of action alleging a defect, lien or Upon the exercise by the Company of either of the options provided for in paragraphs
encumbrance or other matter insured against by this policy. The Company shall a(i) or (ii), all liability and obligations to the insured under this policy, other than to make
have the right to select counsel of its choice (subject to the right of the insured to the payment required 'in. those paragraphs, shall terminate, including any liability or
object for reasonable cause) to represent the insured as to those stated causes of. obligation to defend, prosecute, or continue any litigation, and the policy shall be
action and shall not be liable for and will not pay the fees of any other counsel. surrendered to the Company for cancellation.
The Company will not pay any fees, costs or expenses incurred by the insured in (b) To Pay or Otherwise Settle With Parties Other than the Insured or With the
the defense of those causes of action which allege matters not insured against by Insured Claimant.
this policy. (i) to pay or otherwise settle with other parties for or in the name of an insured
(b) The Company shall have the right, at its own cost, to institute and prosecute claimant any claim insured against under this policy, together with' any costs,
any action or proceeding or to do any other act which in its opinion may be attorneys' fees and expenses incurred by the insured claimant which were authorized`
necessary or desirable to establish the title to the estate or interest or the lien of by the Company up to the time of payment and which the Company is obligated to
the insured mortgage, as insured, or to prevent or reduce loss or damage to the pay or
insured. The Company may take any appropriate action under the terms of this (ii) to pay or otherwise settle with the insured claimant the loss or damage
policy, whether or not it shall be liable hereunder, and shall not thereby concede provided for under this' policy, together with any costs, attorneys' fees and expenses
liability or waive any provision of this policy. If the Company shall exercise its incurred by the insured claimant which were authorized by the Company up to the
rights under this paragraph, it shall do so diligently. time of payment and which the Company is obligated to pay.
(c) Whenever the Company shall have brought an action or interposed a defense Upon the exercise by the Company of either of the options provided for in paragraphs
as required or permitted by the provisions of this policy, the Company may pursue (b)(i) or (ii), the Company's obligations to the insured under this policy for the claimed loss
any litigation to final determination by a .court of competent jurisdiction and or damage, other than the payments required to be made, shall terminate, including any
expressly reserves the right, in its sole discretion, to appeal from any adverse liability or obligation to defend, prosecute or continue any litigation.
judgment or order. 7. DETERMINATION AND EXTENT OF LIABILITY
(d) In all cases where this policy permits or requires the Company to prosecute or This policy is a contract of indemnity against actual monetary loss or damage sustained
provide for the defense of any action or proceeding, the insured shall secure to the or incurred by the insured claimant who has suffered loss or damage by reason of matters
Company the right to so prosecute or provide defense in the action or proceeding, insured against by this policy and only to the extent herein described.
and all appeals therein, and permit the Company to use, at its option, the name of (a) The liability of the Company under this policy shall not exceed the least of
the insured for this purpose. Whenever requested by the Company, the insured, at (i) the Amount'of Insurance stated in Schedule A, or, if applicable, the amount
the Company's expense, shall give the Company all reasonable aid (i) in any of insurance as defined in Section 2(c) of these Conditions and Stipulations;
action or proceeding, securing evidence, obtaining witnesses, prosecuting or (ii) the amount of the unpaid principal indebtedness secured by the insured
defending the action or proceeding, or effecting settlement, and (ii) in any other mortgage as limited or provided under Section 8 of these Conditions and Stipulations
lawful act which in the opinion of the Company may be necessary or desirable to or as reduced under Section 9 of these Conditions and Stipulations, at the time the
establish the title to the estate or interest or the lien of the insured mortgage as loss or damage insured against by this policy occurs, together with interest thereon
insured if the Company is prejudiced by the failure of the insured to furnish the or
required cooperation, the Company's obligations 'to the insured under the policy (iii) the difference between the value of the insured estate or interest as insured
shall terminate, including any liability or obligation to defend, prosecute, or and the value of the insured estate or interest subject to the . defect, lien or
continue any litigation, with regard to. the matter or matters requiring such encumbrance insured against by this policy.
cooperation. (b) In the event the insured has acquired the estate or interest in the manner
5. PROOF OF LOSS OR DAMAGE described in Section 2(a) of these Conditions and Stipulations or has conveyed the
In addition to and after the notices required under Section 3 of these Conditions and title, then the liability of the Company shall continue as set forth in Section 7(a) of
Stipulations have been provided the Company, a proof of loss or damage signed and these Conditions and Stipulations.
sworn to by the insured claimant shall be furnished to the Company within 90 days after (c) The Company will pay only those costs, attorneys' fees and expenses incurred in
the insured claimant shall ascertain the facts giving rise to. the loss or damage. The accordance with Section `4 of these Conditions and Stipulations.
proof of loss or damage shall describe the defect in, or Iien or encumbrance on the title, 8. LIMITATION OF LIABILITY
or other matter insured against by this policy which constitutes the basis of loss or (a) If the Company establishes the title, or removes the alleged defect, lien or
damage and shall state, to - the extent possible, the basis of calculating the amount of the encumbrance, or cures the lack of a right of access to or from the land, or cures the
loss or damage. If the Company is prejudiced by the failure of the insured claimant to claim of unmarketability of title, or otherwise establishes the lien of the insured
provide the required proof of loss or damage, the Company's obligations to the insured. mortgage, all as insured, in a reasonably diligent manner by any method, including
under the policy shall terminate, including any liability or obligation to defend, litigation and the completion of any appeals therefrom, it shall have fully performed
prosecute, or continue any litigation, -with regard to the matter or matters requiring such its obligations with respect to that matter and shall not be liable for any loss or
proof of loss or damage. damage caused thereby:
In addition, the insured claimant may reasonably be required to submit to (b) In the event of any litigation, including litigation by the Company or with the
examination under oath by any authorized representative of the Company and shall Company's consent, the Company shall have no liability for loss or damage until
produce for examination, inspection and copying, at such reasonable times and places there has been a final determination by a court of competent jurisdiction, and
as may be designated by any authorized representative of the Company, all records, . disposition of all appeals therefrom, adverse to the title or to the lien of the insured
books, ledgers, checks, correspondence and memoranda, whether bearing a date before. mortgage, as insured.
or after Date of Policy,- which reasonably pertain to. the. loss or damage. Further, if (c) The Company shall not be liable for loss or damage to any insured for liability
requested by any authorized representative of the Company, the insured claimant shall voluntarily assumed by the insured in settling any claim or suit without the prior
grant its permission, in writing, for any authorized representative of the Company to, written consent of the Company.
examine, inspect and copy all records, books, ledgers, checks, correspondence and (d) The Company shall not be liable for: (i) any indebtedness created subsequent to
memoranda in the custody or control of a third party, which reasonably pertain to the Date of Policy except for advances made to protect the lien of the insured mortgage
loss .or damage. All information designated as confidential by the insured claimant and 'secured thereby and reasonable amounts expended to prevent deterioration of
provided to the Company pursuant to this Section shall not be disclosed to others improvements; or (ii) construction loan advances made subsequent to Date of Policy,
unless, in the reasonable judgment of the Company, it is necessary in the administration except construction loan advances made subsequent to Date of Policy for the purpose
of the claim. Failure of the insured claimant to submit for examination under oath, of financing in whole or in part the construction of an improvement to the land which
produce 'other reasonably requested information or grant permission to secure at Date of Policy were secured by the insured mortgage and which the insured was
reasonably necessary information from third parties as required in this paragraph, unless and continued to be obligated to advance at and after Date of Policy.
prohibited by law or governmental regulation, shall terminate any liability of the 9. REDUCTION OF INSURANCE; REDUCTION OR
Company under this policy as to that claim. TERMINATION OF LIABILITY
6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; (a) All payments under this policy, except payments made for costs, attorneys' fees
TERMINATION OF LIABILITY and expenses, shall reduce the amount of the insurance pro tanto. However, any
'In case of a claim under this policy, the Company shall have the following additional payments made prior to the acquisition of title to the estate or interest as provided in
options: Section 2(a) of these Conditions and Stipulations shall not reduce pro tanto the
(a) To Pay or Tender Payment of the Amount of Insurance or To Purchase the amount of the insurance afforded under this policy except to the extent that the
Indebtedness. payments reduce the amount of the indebtedness secured by the insured mortgage.
(b) Payment in part by any person of the principal of the indebtedness, or any When the permitted acts of the insured claimant occur and the insured has
other obligation secured by the insured mortgage, or any voluntary partial knowledge of any claim of title or interest adverse to the title to the estate or interest
satisfaction or release of the insured mortgage, to the extent of the payment, or the, priority or enforceability of the lien of the insured mortgage, as insured, the
sati�fattion or release, shall reduce the amount of insurance pro tanto. The amount Company shall be required to pay only that part of any losses insured against by this
of insurance may thereafter be increased by accruing interest and advances made policy which shall exceed.the amount, if any, lost to the Company by reason of the
to protect the lien of the insured mortgage and secured thereby, with interest impairment by the insured claimant of the Company's right of subrogation.
thereon, provided in no event shall the amount of insurance be greater than the (c) The Company's Rights Against Non - insured Obligors
Amount of Insurance stated in Schedule A. The Company's right of subrogation against non - insured obligors shall exist and shall
(c) Payment in full by any person or the voluntary satisfaction or release of the include, without limitation, the rights of the insured to indemnities, guaranties, other
insured mortgage shall terminate all liability of the Company except as provided policies of insurance or bonds, notwithstanding any terms or conditions contained in
in Section 2(a) of these Conditions and Stipulations. those instruments which provide for subrogation rights by reason of this policy. The
10. LIABILITY NONCUMULATIVE Company's right 'of subrogation shall not be avoided by acquisition of the insured
If the insured acquires title to the estate or interest in satisfaction of the indebtedness mortgage by an obligor (except an obligor described in Section 1 (a)(ii) of these
secured by the insured mortgage, or any part thereof, it is expressly understood that the Conditions and Stipulations) who acquires the insured mortgage as a result of an
amount of insurance under this policy shall be reduced by any amount the Company indemnity, guarantee, other policy- of insurance, or bond and the obligor will not be
may pay under any policy insuring a mortgage to which exception is taken in Schedule an insured under this policy .notwithstanding Section 1 (a) (i) of these Conditions
B or to which the insured. has agreed, assumed, or taken subject, or which is hereafter and Stipulations .
executed by an insured and which is.a charge or lien on the estate or interest described 13. ARBITRATION
or referred to in Schedule A, and the amount so paid shall be deemed a payment under Unless prohibited by applicable law, arbitration pursuant to the Title Insurance
this policy. Arbitration Rules of the American Arbitration Association may be demanded if
11. PAYMENT OF LOSS agreed to by both the Company and the insured Arbitrable matters may include,
(a) No payment shall be made without producing this policy for endorsement of but are not limited to, any controversy or claim between the Company and the
the payment unless the policy has been lost or destroyed, in which case proof of insured arising. out of or relating to this policy, and service of the Company in
loss or destruction shall be furnished to the satisfaction of the Company. connection with its issuance or the breach of a policy provision or other obligation.
(b) When liability and the extent of loss or damage has been definitely fixed in Arbitration pursuant to this policy and under the Rules in effect on the date the
accordance with these Conditions and Stipulations, the loss or damage shall be demand for arbitration is made or; at the option of the insured, the Rules in effect
payable within 30 days thereafter.
12. SUBROGATION UPON PAYMENT OR SETTLEMENT at Date of Policy shall be binding upon the parties. The award may include,
attorneys' fees, only if the laws of the state in which the land is located permit a
(a) The Company's Right of Subrogation court to award attorneys' fees
Whenever the Company shall have settled and paid a claim under this policy, all to. a prevailing party. Judgment upon the award
right of subrogation shall vest in the Company unaffected by any act of the rendered by the Arbitrator(s) may be entered in any court having jurisdiction
insured claimant. thereof.
The Company shall be subrogated to and be entitled to all rights and remedies The law of the situs of the land shall apply to an arbitration under the Title Insurance .
which the insured claimant would have had against any person or property in Arbitration Rules.
respect to the claim had this policy not been issued. If requested by the Company, A copy of the Rules may be obtained from the Company upon request.
the insured claimant shall transfer to the Company all rights and remedies against 14. LIABILITY LIMITED . TO THIS POLICY; POLICY ENTIRE
any person or property necessary in order to perfect this right of subrogation. The CONTRACT
insured claimant shall permit the Company to sue, compromise or settle in the (a) This policy together with all endorsements, if any, attached hereto by the
name of the insured claimant and to use the name of the insured claimant in any Company is the entire policy and contract between the insured and the Company. In
transaction or litigation involving these rights or remedies. interpreting any provision of this policy, this policy shall be construed as a whole.
If a payment on account of a claim does not fully cover the loss of the insured (b) Any claim of loss or damage, whether or not based on negligence, and which
claimant, the Company shall be subrogated to all rights and remedies of the arises out of the status of the lien of the insured mortgage or of the title to the estate
insured claimant after the insured claimant shall have recovered its principal, or interest covered hereby or by.any action asserting such claim, shall be restricted to
interest, and costs of collection. this policy.
(b) The Insured's Rights and Limitations (c) No amendment of or endorsement to this policy can be made except by a writing
Notwithstanding the foregoing, the owner of the indebtedness secured by the endorsed hereon or attached hereto signed by, either the President, 'a Vice President,
-insured mortgage, provided the priority of the lien of the insured mortgage or its or Agent of the Company.
enforceability is not affected, may release or substitute the personal. liability of 15. SEVERABILITY
any debtor or guarantor, or extend or otherwise modify the terms of payment, or In the event any provision of this policy is held invalid or unenforceable under
release a portion of the estate or interest from the lien of the insured mortgage, or applicable law, the policy shall be deemed not to include that provision and all other
release any collateral security for the indebtedness. provisions shall remain in full force and effect.
16. NOTICES, WHERE SENT
All notices required to be given the Company and any statement in writing required to
be furnished the Company shall include the number of this policy and shall be addressed to
the Company at its principal office at 400 Second Avenue South, Minneapolis, Minnesota
55401, (612) 371 -1111.
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